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Prime Minister Stephen Harper should definitively clear the air of any suggestion that Chief Justice Beverley McLachlin acted wrongly in Supreme Court appointment.

Beverly McLachlin, Chief Justice of the Supreme Court of Canada, in Ottawa last year. (FRED CHARTRAND / THE CANADIAN PRESS)

Sun., May 18, 2014

Prime Minister Stephen Harper seems to be edging back from his reckless and indefensible attack on the chief justice of Canada’s Supreme Court, Beverley McLachlin. As the Star’s Tonda McCharles reported this past week, he now says he simply didn’t need to speak to McLachlin about a court appointment, rather than rejecting such a conversation as “inappropriate” and “inadvisable.”

What Harper has not yet done – and what he must do without delay – is definitively clear the air of any suggestion that McLachlin acted wrongly by offering her input to the government on issues that might arise in a potential appointment.

As things stand now, the prime minister has called into question the integrity of the chief justice – and then left the allegations hanging in the air for more than two weeks. He has neither defended his suggestions that McLachlin attempted to involve him in improper discussions about court appointments, nor has he clearly withdrawn them.

This won’t go away. As long as Harper fails to dispel the suspicions, they will linger. The continuing chorus of concern from Canada’s legal community makes that abundantly clear.

The unseemly spat began on April 30, when the National Post reported “rumours” that McLachlin had lobbied against the appointment of federal judge Marc Nadon to a Quebec seat on the top court (Nadon was subsequently ruled ineligible in March). The chief justice publicly denied that, but the next day the Prime Minister’s Office appeared to confirm the rumours by saying that Harper had refused to take a call from her because it would have been “inadvisable and inappropriate.”

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In fact, according to McLachlin’s account of this episode, she provided advice to a Parliamentary committee and Justice Minister Peter MacKay last year on the appointment process. She inquired about speaking to Harper about issues that might arise, but did not pursue that. All of which took place well before the government’s ill-fated appointment of Nadon.

Legal experts are unanimous in saying that type of consultation is routine for chief justices, who must ensure the smooth running of the Supreme Court. Yet the PMO deliberately portrayed McLachlin’s actions as an improper attempt to influence the appointment process.

The legal community has come out four-square to defend McLachlin and condemn Harper, turning this into an unprecedented squabble between the executive and judicial branches of government. The Canadian Council of Law Deans immediately called on the prime minister to withdraw his suggestion, as did 11 former presidents of the Canadian Bar Association. “The facts that have come to light,” wrote the law deans, “confirm that the chief justice’s actions were beyond reproach and consistent with the dignity of her office.”

This week, more legal voices joined the chorus. Some 650 lawyers and law teachers issued an open letter to the prime minister deploring the “unprecedented and baseless insinuation” that McLachlin’s conduct was inappropriate. Another group of top legal academics has even called on the International Commission of Jurists in Geneva, which usually looks into judicial wrong-doing in places like Egypt and Pakistan, to investigate the government’s “unfounded criticisms” of the chief justice.

Harper’s swipe at McLachlin may have been prompted, as many analysts have suggested, by frustration at recent set-backs his government has suffered at the hands of the Supreme Court. It may come from a sense of betrayal because his own appointees (now a majority on the court) have not consistently backed the government, as legal scholar Allan Hutchinson wrote in these pages last week.

Regardless, the lingering accusation of impropriety has cast a shadow over the court and raised troubling questions about the relationship between the government and the judiciary. It was Harper who created this completely unnecessary squabble. Only he can end it – by once and for all withdrawing his insinuations about Canada’s top judge.

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